1 – 1999
THE LANGUAGE OF THE LAW Characteristics of the courtroom discourse Eva Přidalová
Introduction In all societies, law is formulated, interpreted and enforced: there are codes, courts and constables. The greater part of these different legal processes is realised primarily through language. “Language is medium, process and product in the various arenas of the law where legal texts, spoken or written, are generated in the service of regulating social behaviour.”1 In the Anglo-Saxon common law system, a discrete legal language has been apparent since post-Conquest England, which in many essentials has persisted to the present day. A description and explanation of the present-day forms and organisation of the language of English needs to begin with a brief account of its origin. The common law The institution of English law, as we know it, dates from the Norman Conquest. There was English law before the Norman Conquest but there was no distinct profession, no centralisation of justice. These things plus a wealth of legal concepts the Normans brought with them and gradually established in Britain. The written language of the law after the Conquest was at first Latin and English. Latin was predominant. By the time William the Conqueror died, Latin was the language of formal written documents. It was not classical or medieval Latin but law Latin that included many latinised English and Old French words. By the fourteenth century, French had taken over from Latin as the language of the Year Books (the earliest law reports) and statutes, strangely enough when French as a language for communication was dying out and the English language was rapidly replacing it. It was not until 1650, by An Act for Turning the Books of the Law, and all Processes and Proceedings in Courts of Justice into English (455 (1650) 11 Acts and Ordinances of the Interregnum) that English became the official language of the law. By that time a host of Old English, Latin, Norman-French and Middle English terms had become fixed in the vocabulary of lawyers. Over the centuries since then there has been 1.
Yon Maley: The language of the law, s. 11, in: J. Gibbons: Language and the Law, Essex Longman 1994.
a continual process of Anglicisation, but particularly in vocabulary, in the specialised, technical lexicon of the law, the effect of its varied origins is still apparent. It would be a mistake to suggest that the language of the law reached its definitive form in the Middle Ages and has remained unaltered ever since. It has been affected by the great moves of culture and taste that differentiate one period of history from another. Probably it reached its heights in the early eighteenth century. Since then there has been a slow but perceptible process of simplification. Despite these efforts at simplification and clarification, the gap between legal discourse and everyday discourse is still very wide. Present day legal discourse retains its identity as a highly specialised and distinctive discourse type or genre of English. The legal discourse of the legal systems of England, Canada, the United States of America, Australia and New Zealand, which are derived from the English common system, are similar. The expressions of this discourse type are to be found in a variety of legal situations. There is not one legal discourse but a set of related legal discourses. Each has a characteristic flavour but each differs according to the situation in which it is used. There is judicial discourse, the language of judicial decision, either spoken or written, which is reasonably flexible and varied but none the less contains recognisably legal meanings, in predictable patterns of lexicogrammar. These judicial decisions, collected in reports, make up what is known in the English-derived common law system as case law. There is courtroom discourse, used by judges, counsel, court officials,...